The Commonwealth government has lodged a writ of summons in the High Court challenging the validity of the ACT's same sex marriage laws.

A spokesman for the High Court of Australia confirmed the writ was lodged on Wednesday, just 24 hours after the laws were passed by the ACT Legislative Assembly.

The writ says the new laws are inconsistent with the Commonwealth Marriage Act and the Family Law Act.

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ACT Chief Minister Katy Gallagher said the move was expected, and ACT Attorney-General Simon Corbell said the Commonwealth was being patronising and rejected the call for an expedited hearing. He said the laws had a "high chance of surviving".

A High Court hearing could be held as soon as next week. The ACT Government was called to file its defence by October 30 and the proceeding filed for further directions on October 31.

"The Commonwealth contends that the proceeding should be heard at the earliest possible date, to reduce or avoid the uncertainty that will hang over the validity of the ACT Marriage ACT," the writ says.

"That uncertainty is exacerbated to the extent that persons may wish to enter into marriages under the ACT Marriage Act before its validity is determined."

The Australian Government Solicitor has asked for the matter to be heard by the full court and is seeking a hearing Thursday or soon thereafter.

"There would be immediate adverse effects for persons whose marriages would be ineffective if the ACT Marriage Act is found invalid," the writ says. "The status of marriage has a weight and a significance beyond its legal consequences."

A proposed timeline in the writ includes a one or two day hearing of the full court as early as November 26.

ACT Attorney-General Simon Corbell dismissed the call from the Federal Governemnt for same-sex couples to hold off marrying in the territory until the law was tested in the High Court.

“I would say to the Prime Minister and to Senator Brandis that their comments are patronising . . . in the extreme," Mr Corbell said.

“The only people causing distress to same-sex couples are the Prime Minister and [Federal Attorney-General] Senator [George] Brandis."

Mr Corbell was confident that the law had a strong chance of surviving the challenge.

“I’m very confident that our act is soundly-based and has the potential to give us strong legal arguments to put," he said.

“Ultimately it will be a matter for the court to decide. We are in uncharted waters. This will be a very significant High Court case but we will present the best arguments on behalf of our law."

Mr Corbell said the ACT would comply with any timeline set by the court but did not believe that the case should be expedited. He said potential additional parties to the case should be given time to prepare.

“We believe it’s important that parties who wish to be heard are given the opportunity to porterly prepare," he said.

The ACT’s defence would be funded from existing government legal budgets.

Mr Corbell said external counsel had been employed by the territory for the case. But he declined to name the counsel.

Advising same-sex couples wishing to marry in the ACT to wait until a High Court challenge is resolved, Mr Abbott said the federal government had constitutional responsibility for marriage.

"It is not a question of being for or against gay marriage - it’s a question of adhering to the constitution," Mr Abbott told Fairfax Radio in Melbourne.

"If, as I think, the ACT legislation turns out to be invalid under the Constitution then those marriages wouldn’t be valid," he said.

"So I would suggest to people who would like to be married under the ACT legislation hold on until its validity is tested."

Mr Abbott said there were a range of views about same-sex marriage within the Coalition government and amongst his Cabinet members.

He said the views of Attorney-General George Brandis could be more progressive than others.

"But the job of the attorney is to uphold the constitution," he said.

Senator Brandis, who has maintained a low-profile since recent criticism of his use of parliamentary entitlements for personal travel and the fit out of his Parliament House office, would not comment when asked about the federal government's chances in the High Court.

"I don’t think it’s wise for people to comment on proceedings before the High Court," he told reporters in Canberra on Wednesday.

"One of my predecessors, Ms Roxon, made a habit of offering a running commentary on litigation in which the Commonwealth was involved. I thought that was extremely foolish and it's not something I need to do."

He issued a statement on Tuesday and said he would seek an expedited hearing in the High Court - in part to minimise any ''distress'' the overturning of the laws might cause to couples who had already married.

Read the full writ of summons provided by the High Court of Australia.

131 comments

I hope his sister gets married and then he has to tell her that it's no longer valid. What an arrogant decision!

Commenter

BJ

Date and time

October 23, 2013, 2:14PM

What an arrogant comment!

Commenter

Indeed

Date and time

October 23, 2013, 2:39PM

I understand your frustration BJ, but its not arrogant its a legal issue, as I have said before the Gallagher Labor / Green Government has set the Gay Community in Canberra up for disappointment. Abbott's sister has all ready said she won't take up the offer for .

Commenter

Martin Says

Location

Canberra

Date and time

October 23, 2013, 2:54PM

+1, BJ. I think it really say something about a man's character if he is willing to uphold prejudice against someone in his own family.

Commenter

Jess

Location

Brisbane

Date and time

October 23, 2013, 2:57PM

The arrogant decision is that of the ACT Legislative Assembly. Why didn't they do this when the ALP were in Govt? They had plenty of time to legislate this law but they did not want to upset their ALP mates but they wasted no time upsetting the new Liberal Govt and making them out to be the bad guys. The ACT Legislative Assembly knew the Federal Govt will challenge ant change to the marriage laws as they know that unlike the States they are beholden to the Federal Govt just like the NT Legislative Assembly was with their euthanasia laws that were passed but were blocked by the Federal Govt.

Commenter

terry

Date and time

October 23, 2013, 3:27PM

@Martin it's not good just saying it's a legal issue. It's a discrimination issue. Tony is now just hiding behind a constitutional law. How is it then, that other countries were able to have same sex marriage under the Commonwealth? There we go!

Commenter

The Other Guy1

Date and time

October 23, 2013, 3:44PM

Terry - You can't fault the ACT Government for doing what they said they would do. They waited to see if the Federal government would actually do something about this issue before legislating. With the failure of the private member's bill in the parliament, where Mr Abbott refused to allow a conscience vote to any coalition member (see http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1112a/12bd158). This legislation has been in the works for many months it was waiting for Federal action that didn't occur.

Mr Abbott also said that he would review this issue "After the Election" and that he would look at giving Coalition members a conscience vote then. Not sure why it had to wait until after the election other than Mr Abbott was displaying his usual negativity on every issue while in opposition. I personally do not believe the coalition will ever bring it forward in a manner that will ever pass as it goes against the Tea Party like beliefs of so many of their front bench.

Commenter

Mike

Location

Canberra

Date and time

October 23, 2013, 6:12PM

You are a fool. A Federal Labor government would be equally obliged to test the validity of the ACT decision. It is not a political issue. The ACT have moved deliberately to force the Federal governments hand. Were the federal government not to test the ACT decision, future marriages in the ACT might prove invalid. It is legally required that the matter be tested in the appropriate court.

Commenter

Clark K

Date and time

October 23, 2013, 8:41PM

Abbott & the libs ... how low can you go.Upholding their own prejudices ... even despite his sister. What an absolute nut job!Thanks for the comment indeed ,... next time please spare us all your lack of respect.

Commenter

Yuppy

Location

Yuppy Ville

Date and time

October 23, 2013, 9:15PM

Jess, yes, and if Tones sister has any moral principals at all, if this challenge gets up, she should immediately resign from the LNP. How can she possibly remain in this reactionary mob that denies her and her friends marriage rights.. ??

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